Rates of divorce increase every passing year in Turkey, as in the world. TÜİK data also supports this fact. While 487 thousand 270 persons married in 2020 in Turkey; 135 thousand 22 persons divorced. Divorce lawyer Seyit Halil Yüzgeç compiled for you the grounds of divorce that are applicable before the law. Here are the grounds of divorce as written by Attorney Yüzgeç...
Divorce reasons are the grounds that affect the decision of the judge in contested divorce suits between husband and wife. While grounds for divorce are not required in uncontested divorces, there must be at least one ground for divorce in a contested divorce. At least one ground for divorce must be proved for marriages to be terminated.
Grounds for divorce are collected under two titles. These are;
Special grounds for divorce are;
and others.
Adultery is a ground for divorcement that come to being as one of the spouses has an intercourse with another person. Adultery is regulated under the article 161 of Turkish Civil Code. Accordingly; a lawsuit must be filed for adultery within 6 months and before 5 years pass after it becomes known. The Law also prevents the party excusing the adultery from filing a divorce suit on this ground.
For an intercourse of one of the spouses with another person to be considered adultery;
are stipulated. For adultery to constitute a ground for divorce, presence of marriage is required. Invalidity of marriage for absolute nullity does not prejudice the condition of presence of marriage since a non-existent marriage may be terminated by a judicial decision. The fact that spouses live apart from each other for indignation or ailment and even declaration of absence of one of the spouses do not nullify the obligation of faithfulness between spouses.
As in the decisions of the Court of Appeals for the 2nd Circuit no. E.1993/7903, K.1993/7941, T.23.9.1993; the opposing spouse may file a divorce suit on the ground of adultery even though the favorable conditions for the action of adultery are met in the event that sexual intercourse does not materialize.
Additionally, it was made clear by the decision of joint chambers of the Court of Appeals bearing the number E.2017/5, K.2018/7 and date 06.07.2018 that whether the defrauded party may request compensation from the 3rd person having intercourse with the spouse committing the adultery, that is to say; whether he/she may file a "mistress suit" as in the colloquial language. According to the decision;
The defrauded party may not claim immaterial compensation from a third person having an intercourse knowing the spouse is married while the marriage continues.
For adultery to constitute a ground for divorce; it is important that the spouse committing adultery commits the act on purpose and with mental competence. Narcotization or hypnotization may not be claimed to be a ground for divorce by claiming such circumstances eliminate the neglect of the fornicator.
Another ground for divorce is the action of attempt as regulated in the article 162 of the Turkish Civil Code. Accordingly, attempt is the entirety of actions (homicidal attempt, encouraging and forcing suicide, etc.) conducted by one of the spouses to terminate the life of the other provided that he/she has the mental competence. In addition to actions to terminate life; inaction to prevent the termination of life or ensuring that appropriate treatment is applied with regret on the attempt are also considered to be grounds for divorce.
The necessary factor for the divorce to be grounded on an attempt is its direction to one of the spouses and the action of the attempt must be committed by the spouse. Performance of the attempt by the attempting the spouse instigating someone else to perform the action of attempt also constitutes a ground for divorce.
Ill conduct is the action of one the spouses towards the other that deteriorates and endangers health and causes pain and anguish. For the act to constitute a ground for divorce, it must be performed knowingly and intentionally. Indignity is the action against the assets of the spouse.
The period of prescription when all these grounds are among special grounds for divorce is 6 months as in adultery and 5 years in each case.
Among other grounds for divorce are deprecating crimes and disreputable lifestyle. For these actions to be accepted, they must be performed knowingly and with mental competence, which means the spouse must be faulty. The decision whether this ground materilzes or not is up to the judge.
No period of prescription is determined to apply to this ground specified in the article 163 of the Turkish Civil Code. A divorce suit may be filed at any time by reasoning this ground. The Law does not consider remission as a provision and a lawsuit may still be filed even in the case of remittence. Deprecating crimes are not clearly regulated in the Turkish Civil Code, however; each infamous crime is considered to be a deprecating crime.
Disreputable lifestyle is a justifiable ground for actions constituting contradiction to all kinds of values universally. The realization thereof is in the discretion of the judge. Some court decisions considered prostitution, pimping, drug addiction, exhibitionism and sexual deviation within the scope of the ground of disreputable lifestyle.
The most important condition to ground the divorce on disreputable lifestyle is the fact that the act of disreputable lifestyle starts before marriage, continues during marriage or starts after marriage.
Another ground for divorce is abandonment. According to the article 164 of the Turkish Civil Code, abandonment is the act of abandoning the mutual life knowingly to avoid liabilities required by marriage or failure to return to the mutual life where he/she leaves for justifiable reasons (military service, treatment, education, imprisonment, etc.) when the justifiable reason ends. Material conditions for the act of abandonment to materialize;
Banishment of one the spouses by the other from the dwelling without justifiable reasons or one of the spouses being compelled to leave the dwelling constitute grounds for divorce in addition to one of the spouses being moved away from the dwelling by the other. In such cases, the person in the mutual dwelling and preventing the other is deemed to commit the act of abandonment. An exception of the absence of the right to file a suit by the spouse abandoning the mutual dwelling is the verdict of the Assembly of Civil Chamber of the Court of Appeals bearing the number E.2007/332, K.2007/332 and date 06.06.2007. Accordingly, there is a verdict regarding the acceptance of a divorce suit filed against an abusing spouse by a spouse being obliged to abandon the dwelling due to the abuse of the other on the ground of abandonment for divorce.
Another condition for the acceptence of a divorce suit on the ground of abandonment is that at least 6 months have to have passed since abandonment and the act of abandonment still continues. Besides, a notice must be communicated to the spouse living outside the mutual dwelling for 4 months to return and the spouse has to not have returned within 2 months despite the notice.
One of the special grounds for divorce is mental illness. Mental illness constitutes an exception for the principle that no divorce suits may be filed on the ground of illness. According to the article 165 of the Turkish Civil Law; conditions for filing a divorce suit on the ground of mental illness are that
A medical report received from an official hospital with only one physician's signature or not received from an official hospital constitutes an obstacle for the ground of mental illness to be accepted valid.
Assembly of Civil Chambers of the Court of Appeals expressed that for a mental illness to constitute a ground for divorce, it must reveal after marriage or in case of presence thereof before marriage, it must be to the extent that it does not prevent marriage.
A divorce suit on the ground of mental illness may be filed as long as the illness exists.
General grounds for divorcement as envisaged in the Turkish Civil Code
Breakdown of marriage included in the general grounds for divorcement is regulated in the article 166/1-2 of the Turkish Civil Code. For this ground to be valid, there must be a serious disagreement and incompatibility of temperament between spouses. However, disagreement and incompatibility of temperament do not come to light with sudden reaction or crises as in every family. No period of prescription is determined for a divorce suit to be filed on the ground of disagreement and incompatibility of temperament. For the ground to constitute a ground for divorcement, its expediency is evaluated and resolved by the judge.
It is not a stipulation that a ground for divorce reveals due to the neglect of one of the spouses. A situation that reveals for reasons beyond control may make a marriage intolerable for the other spouse. The important thing here is that the spouses have the desire and aspiration to continue the marriage. Another factor is that the interest to be acquired as a result of divorce is more than the interest to be acquired as a result of the continuation of marriage.
Another general ground for divorcement is the agreement of spouses. For divorce by common consent, it is essential that the marriage continues for at least 1 year, that spouses make this decision by free will and spouses agree on the issues such as financial results of divorce and children in common.
Another general ground for divorcement is the failure to reestablish the mutual life. This ground is resolved in the article 166/4 of the Turkish Civil Code. Accordingly;
Should spouses fail to reestablish the mutual life in the event that the divorce suit filed reasoning of the grounds for divorce is rejected and 3 years have passed since the finalization thereof; the marriage is deemed broken down and a divorce is granted upon the request of the one of the spouses.
According to this law; qualification to file a divorce suit reasoning of these grounds called "de facto separation" is one the grounds for divorce that are not stipulated to the presence of a neglect. It does not require the judge to comprehend the fact that the marriage is intolerable, either.
Attorney Seyit Halil Yüzgeç (SHY) Law Office opened its first office in 2001.
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